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Personal Injury Litigation FAQ

How long do I have to bring a personal injury case?
Every state has its own time limits on personal injury claims, known as statutes of limitation. The statutes can vary tremendously, depending on the state, the type of claim, the age of the injured party, and many other factors. In California, most personal injury and products liability claims must be filed no later than two years after the date of injury, although the period of limitations may be extended in certain circumstances. Some personal injury claims, such as those involving medical malpractice or lawsuits against governmental entities may have much more restrictive statutes of limitation or other filing deadlines. Conversely, California and other states provide for extended statutes of limitation for certain actions, including sexual abuse.

In California and most other states, the statute of limitations may be extended where the injury victim is a minor (under 18), although this extension may have its own limitations, especially in the case of medical malpractice claims.

Because the time limitations on your ability to bring civil claims for damages may forever terminate your rights to sue, and because statutes of limitation are extraordinarily complex and variable, it is absolutely critical that you consult with a lawyer as soon as you believe you have suffered an injury caused by the wrongful conduct of another person or entity. Even if you are not sure that you have a claim, your statute of limitations may be running, and you may need to take immediate steps to preserve and protect your rights.

What is a class action, and how is it different from a personal injury lawsuit?
Many people are confused about the difference between class actions and individual personal injury lawsuits, especially involving defective products. A class action is a single lawsuit in which one or more individuals act as "representatives" of a class of individuals, all of whom sustained damages as the result of the same or similar wrongful conduct. In California and many other states, a class action may not be brought in order to recover damages for physical injuries. Instead, class actions are usually brought in order to recover economic damages caused by fraud and unfair business practices. Class action cases are resolved through a single pool of money, which is distributed among class members upon after approval by the court.

A personal injury lawsuit is brought by a single individual who is suing for his or her own specific personal injuries. Sometimes, there may be hundreds or even thousands of people who have made individual personal injury claims all across a state or the country that involve identical or similar issues, such as the same drug or medical device. In such situations, courts may consolidate or coordinate these claims in front of a single judge in order to resolve the cases more efficiently. This is different from a class action because, in the end, each case is resolved individually on its own merits.

Can a child file a personal injury lawsuit?
In California and many other states, a child may not bring a personal injury action on their own. In such cases, the court will appoint a personal representative or guardian ad litem who acts on behalf of the child until he or she reaches the age of majority. Lawsuits filed on behalf of children are subject to a number of other special rules designed to make sure that children are properly represented and that any monetary recovery is in their best interests.

What is a wrongful death action and who can bring one?
Unfortunately, victims may die as the result of their personal injuries. In California and many other states, there are laws that allow both the deceased person's estate as well as his or her heirs to recover certain types of damages. The laws governing the recovery of damages following the death of a person vary substantially from state to state, and if you are a close relative or executor of a deceased individual's estate, you should consult a qualified personal injury attorney to advise you.

How do I know if I have a claim against the manufacturer of a drug, medical device, or other product?
When a person is in an automobile accident caused by someone else, it is obvious that they have a potential claim. However, some injuries and medical conditions may have multiple possible causes, and it may not be clear whether they are related to someone's wrongful conduct, such as a defective product. This is especially true in the case of injuries caused by the adverse effects of drugs and other medical products.

In the case of drugs and medical devices, your doctor may or may not tell you whether he or she thinks you have suffered an adverse reaction of other product-related complication. If you have an unexpected medical problem that arises after you take a drug or have a medical device implanted or used during a surgery or other procedure, it is a good idea to ask your doctor about possible causes. Also, researching your medical condition or the drugs and devices you have been exposed to may show that certain products have been recalled or subjected to regulatory action by the Food & Drug Administration (FDA).

In the case of other consumer products, such as machinery, cars, tires, toys, and other items, research on the Internet may indicate product recalls, design changes, and other activities suggesting that a product you used may have been defective.

Lawyers with experience in products liability cases, such as The Senators Firm, keep abreast of any news involving defective products, and may be able to review the facts surrounding your injury or medical condition to determine whether a product defect is to blame. The best rule of thumb is: if you suspect your injury may have been do to a defective product, consult a qualified lawyer as soon as possible.

My injuries were partly caused by my own negligence. Do I still have a claim?
California and many other states have adopted a legal doctrine known as "comparative fault." Under this doctrine, an injury victim's own negligence in causing his or her injury does not preclude the victim's ability to bring a lawsuit against other negligent parties in most situations. Instead, the amount of damages recoverable by the victim will be reduced in proportion to his or her fault, as determined by the judge or jury.

In the case of product related injuries, California requires manufacturers to take steps to reduce the risk of injuries caused by the carelessness of product users, if the manufacturer is aware that consumers are likely to ignore warnings or use products contrary to labeled instructions.

In a few states, a victim's own negligence may bar him or her from filing a lawsuit. Also, the law of comparative fault varies significantly from state to state, so you should consult an attorney to determine the law where you live.

What types of damages may I recover?
In California, a personal injury plaintiff may be entitled to monetary damages reflecting past and future medical expenses, lost wages, lost future income, and damages for pain and suffering and emotional distress. In some cases, the spouse of an injury victim may sue for damages stemming from the impact of the injuries on the marriage, including the loss of sexual relations.

Where a defendant has acted with "malice," a plaintiff may be entitled to recover punitive damages, designed to punish and deter a defendants conduct.

Can I sue for work-related personal injuries?
In California and many other states, many work-related injuries are handled through worker's compensation laws. Under worker's compensation laws, your employer may not be sued in a traditional personal injury lawsuit. Instead, you should retain a worker's compensation lawyer who can guide you through the process of gaining compensation through the worker's compensation system.

There are a number of exceptions to the worker's compensation laws in California and elsewhere. Where your injury does not occur while you are acting in the course and scope of your employment, worker's compensation does not come into play. In addition, if your work-related injuries are caused in whole or in part by the conduct of a third party (other than your employer), you may sue that third party in a personal injury case, and also recover worker's compensation. A prime example of this is an injury at work caused by a defective machine manufactured by someone other than your employer. Also, you may sue your employer for harassment, sexual abuse, unlawful termination, and many other claims.

If you suffer an injury at work, consult with a qualified lawyer in order to determine the nature of your claim and the extent to which you may have legal remedies beyond worker's compensation.

What is the process of litigating a personal injury claim?
The process is different depending on the nature of your claim, its complexity, and the jurisdiction you are in. Broadly speaking, once you retain a lawyer, your claim will be investigated and important information, such as medical records, may be obtained and reviewed, and expert consultants may be retained to review the potential case.

A lawsuit is formally commenced in California and many other states by the filing in court of a document called a "complaint." The complaint names the persons and entities you are suing (the defendants) and sets forth the general allegations you are making as to liability and damages. The defendants will then have an opportunity to respond to the complaint in writing.

Once both sides to the lawsuit have made their initial appearances in court, the parties will normally begin a lengthy period of activity known as "discovery." During discovery, the parties exchange written questions and answers, produce documents, and take the sworn testimony of witnesses (depositions). In complex cases, the discovery process may be long (1-3 years) and contentious, especially when large corporations are involved.

At some point during the process, the court will schedule the case for trial. This will normally trigger additional pre-trial activities designed to narrow the issues in the case, and defendants will commonly attempt to persuade the court to limit or preclude the plaintiff's claims based on the evidence obtained during discovery. The court may also be asked to make pre-trial rulings on evidence and other matters.

It is not uncommon for the court to order certain claims to a pre-trial proceeding known as "mediation." The parties themselves may also agree to mediate. Mediation is a process where a "neutral" third party, usually a retired judge or a lawyer who specializes in mediation, will attempt to encourage the parties to settle before trial. The purpose of mediation is to resolve claims without the need for trial, which may drastically reduce the costs of litigation for both sides. The vast majority of personal injury cases are resolved through mediation or other informal settlement negotiations.

If a case does not settle, it will proceed to trial. Depending on the complexity of a case, the number of witnesses, the need for expert testimony, and other factors, a trial may last between a few days and many months. During trial, the parties may continue to attempt to settle the case. If the case does not settle, the judge or a jury will issue a verdict. Following a verdict, either side may choose to appeal to a higher court.

What are the costs and fees involved in litigating a personal injury case?
We represent all of our personal injury clients through "contingent fee agreements." A contingent fee agreement is a contract for services between you and our firm which details the services we will provide to you during the representation, as well as the fees and costs. Subject to California State Bar rules, our firm will advance (pay for) all of the costs associated with your lawsuit (e.g. court costs, expert witnesses, exhibits, etc.). You will not pay those costs, or our attorneys' fees, until and unless we obtain a monetary recovery on your behalf. Simply put: If you don't recover compensation, you don't pay.

The amount of fees we charge will be based on a percentage of your recovery. That percentage, which is set forth in the contingent fee agreement, will depend on the type and complexity of your case and upon applicable laws and state bar ethical rules. In cases involving minors, our fees may be set either by state law, or subject to court approval.

The amount of attorney's fee we charge is typically based on the amount of work we anticipate as well as the complexity of the case, as well as the amount of costs we will need to advance. Complex products liability cases may be extraordinarily difficult and expensive to litigate, with costs for items such as expert witnesses, document review, and depositions running into the hundreds of thousands of dollars, without any guarantee we can recover our costs or obtain a fee. This "risk" factor is important to consider when evaluating an attorney fee contract. You should be wary of lawyers who promise outstanding legal services for low fees.

Given the complex nature of many of our cases, we often collaborate with other prominent firms in and outside of California – at no additional charge to our clients – in order to enhance the prosecution of cases against well-funded adversaries such as pharmaceutical and medical device companies and other large entities and institutions. At The Senators Firm, we make it a point to walk each of our clients through all of the provisions of our fee contracts so that any questions or concerns are addressed before the document is signed.

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